IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37752 of 2007(T)
1. P. SUNDARI BHAI (W/O.LATE J.JUSTUS,
... Petitioner
Vs
1. KERALA STATE ROAD TRANSPORT CORPORATION,
... Respondent
2. THE DISTRICT TRANSPORT OFFICER,
For Petitioner :SRI.K.P.RAJEEVAN
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :05/01/2009
O R D E R
S.SIRI JAGAN, J.
==================
W.P.(C).No. 37752 of 2007
==================
Dated this the 5th day of January, 2009
J U D G M E N T
This writ petition is filed by the widow of a deceased
employee of the Kerala State Road Transport Corporation seeking
the following reliefs:
“i) Call for the records leading to this case and issue a writ of
certiorari quashing Exhibit P4.
ii) Declare that the husband of the petitioner is expired while in
service and legal heirs are entitled for all service benefits
including family pension and appointment under dying in harness
scheme.
iii) Issue a writ of mandamus or any appropriate writ or order
directing the respondents to sanction and disburse family
pension, Provident Fund, Staff Welfare Fund and all other
benefits including appointment under dying in harness scheme
to the petitioner and her family.”
2. J.Justus, the late husband of the petitioner, entered
the service of the KSRTC on 19.1.1979. According to the
petitioner, he continued in service till 22.1.2002, on which date
he died. The petitioner’s grievance is that terminal benefits due
to her husband and family pension due to the petitioner, are not
being paid to the petitioner on the ground that J.Justus resigned
from the service of the Corporation on 18.8.1995, which was
accepted on 1.2.2003. Petitioner’s contention is that since the
w.p.c.37752/07 2
alleged acceptance of resignation was after the death of her
husband, it has no legal validity and therefore, terminal benefits
and family pension due to the legal heirs of late J.Justus cannot
be denied to them on the ground that the resignation of the
petitioner’s husband submitted prior to his death had been
accepted after his death. The petitioner also relies on the decision
of James Mathew v. Cement Corporation of India Ltd. [ILR
1997 (3) Kerala 151] in support of her contention that
resignation takes effect only from the date of acceptance of the
same.
3. A counter affidavit has been submitted on behalf of the
respondents refuting the contentions of the petitioner. According
to them, J.Justus submitted his resignation letter dated
18.8.1995 on 23.8.1995. He filed nomination for contesting
Panchayat election held on 23.5.1995. Since in the resignation
letter Justus had claimed retirement benefits also vide memo
dated 21.11.1995, he was asked whether he would like
resignation or invalid pension. Justus submitted an application for
invalid pension on 12.10.1995 opting for invalid pension with
effect from 19.9.1995. In the meanwhile, Justus was elected to
w.p.c.37752/07 3
the Panchayat Committee and the opposing candidate of Justus
in the Panchayat election, filed O.P(Election) No.111/95, inter
alia contending that Justus was disqualified from contesting the
elections since he was an employee of the KSRTC. In that
petition, Justus filed an affidavit stating that he had resigned
from KSRTC and therefore, he was not an employee of the KSRTC
at the time of filing nomination, which was considered and the
election petition was dismissed. A copy of the judgment in the
election petition is also produced as Ext.R1(c). After his tenure as
a member of the Panchayat was over, Justus filed O.P.No.124/01
before this Court, seeking a direction to grant him invalid
pension, which was disposed of by judgment dated 23.3.2001
directing the KSRTC to dispose of his representation dated
3.3.2001. Although a hearing was conducted on 31.10.2001,
before orders could be passed, Justus died on 22.1.2002.
Therefore, the matter was placed before the Board of Directors,
who on 1.2.2003, resolved to accept the resignation tendered by
Justus on 23.8.1995 with effect from 18.8.1995, pursuant to
which Ext.R1(a) memo dated 28.2.2003 was issued removing
Justus from the rolls of the KSRTC with effect from 18.8.95. On
w.p.c.37752/07 4
these averments the respondents contest the claims of the
petitioner.
3. The petitioner would contend that in any event
Sri.Justus cannot be denied invalid pension as per his application
dated 12.10.95.
4. I have considered the rival contentions in detail.
5. At the outset I am constrained to hold that the
petitioner has not disclosed material facts on the issue in her writ
petition. She has not chosen to state in her writ petition that her
husband had submitted resignation from KSRTC to contest the
election to the local body. It is not also disputed before me that
her husband submitted before the Election Tribunal that he had
resigned from the services of the KSRTC and that he was not an
employee of the KSRTC as on the date of submitting nomination
for the election held on 23.9.1995. Had he been an employee of
the KSRTC at the time of filing nomination, he would have been
disqualified for contesting the elections. Despite having been
aware of these facts, the petitioner has not chosen to state the
same in the writ petition, which amounts to suppression of
material facts and the writ petition deserves to be dismissed on
w.p.c.37752/07 5
the ground alone.
6. On merits also I am not inclined to countenance the
claim of the petitioner, which if done would amount to allowing
the said Justus to take advantage of his own wrong doing. He
contested the local body election on the premise that he resigned
from services of the KSRTC. Without resigning from the KSRTC,
he could not have validly contested the election. He having
contested the election and enjoyed the fruits of having won the
election, he and consequently his legal heirs, cannot turn around
and claim that his resignation having not been accepted, he
continued to be an employee of the KSRTC despite he having
submitted resignation. He could not have and consequently the
petitioner as his legal representative cannot, blow hot and cold.
They also cannot take advantage of the situation and claim the
best of both worlds. Therefore, having taken advantage of his
resignation to contest the election, the said Justus must be
deemed to have ceased to be an employee of the KSRTC on
account of resignation from the date from which he wanted the
resignation to take effect although the resignation was not
formally accepted by the KSRTC. In the particular facts of this
w.p.c.37752/07 6
case, the decision in James Mathew’s case (supra) is clearly
distinguishable.
7. I do not also find any merit in the claim of the
petitioner that since Justus had submitted application for invalid
pension, the same should be granted. The application for invalid
pension was submitted only on 12.10.1995, on which date
Justus was not an employee of the KSRTC, he having contested
the local body election on 23.9.1995 on the premise that he
resigned from KSRTC prior to the date of submitting nomination
for election. Further, Justus cannot be held to be eligible for
invalid pension since he was not an invalid as he had no difficulty
in contesting an election and invalidity, if any, occurred long
after. He having actively contested an election, it cannot be held
that he was eligible for invalid pension.
8. Therefore, on all counts, the petitioner is not eligible
for any of the benefits prayed for. Accordingly, the writ petition is
dismissed, but without any order as to costs.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
w.p.c.37752/07 7